Category Archives: Legal

Arthritis likely after knee injuries

Here’s a story from The New York Times that I thought you would find interesting:

Limited research on the long-term effects of damage to connective tissue indicates that, no matter how young the patient, they have a 50 percent chance of developing arthritis within a decade.  This can be an issue of uncompensated damage in personal injury cases.

Read More…

 

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The number of A.C.L. operations at 26 children’s hospitals in the United States has soared as more children and adolescents play sports that involve twisting the knee. Credit Mark Makela for The New York Times

When Jason Lalli tore his left anterior cruciate ligament at age 26, he thought he would be fine as soon as he had his knee repaired. As a soccer player who competed through college and then on recreational teams, he knew that A.C.L. injuries could be debilitating but also that orthopedists could fix them.

He figured that he would miss a season, but that he could play and coach the game he loved for the rest of his life.

Four years later, his knee began to ache, and the pain became more constant over time, nagging almost “like a toothache,” he said. Within about another year, Lalli’s doctor did more work on the knee and gave him bad news: He had arthritis.

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Your legal rights are at risk

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TOMORROW, the House of Representatives will vote on yet another bill to limit your right to demand quality health care for yourself and your loved ones.   Take Action

The so-called “Protecting Access to Care Act of 2017” [H.R. 1215] will make lawsuits brought by injured patients, nursing home residents, and their families nearly impossible to pursue. It will rig the system against individuals like you and tip the scales in favor of health care corporations and the insurance industry.   Take Action

If you want to stop Congress from eliminating your rights to hold the parties that harmed you or your loved ones accountable, tell your elected officials in Washington to VOTE NO on this offensive bill.

Take Action  today! Your elected officials need to hear from you that you want to preserve your rights to access the civil justice system.

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777 6th Street NW, Suite 200 | Washington, DC 20001 | 202-965-3500

Nursing homes get forced arbitration back

AAJ-forced arbitration

Posted 6/06/17
by Levin & Perconti
Illinois Nursing Home Abuse Blog

Trump Administration Abandons Fight for Ban on Nursing Home Arbitration Clauses

What little hope remained that arbitration clauses would disappear from nursing home admission paperwork is now gone. Friday, June 2 was the deadline for the Trump Administration to submit paperwork to continue the appeal of a Mississippi Supreme Court judge’s decision to block a ban on nursing home arbitration clauses.  Instead, the administration decided to withdraw from the fight.

An Attempt to Restore Justice
Last September, the Centers for Medicare and Medicaid Services (CMS) released their updates to nursing home regulations for the over 15,000 facilities that currently receive Medicare and/or Medicaid support. One of the biggest changes was a ban on mandatory arbitration clauses in nursing home admission paperwork. An arbitration clause requires a potential plaintiff to agree to forgo a trial by jury and work with an arbitrator who will attempt to get both sides to come to an agreement on a settlement. The problem, besides the fact that it forces vulnerable Americans to waive their seventh amendment right to a trial, is that nursing home arbitration typically favors the defense by allowing them to select the arbitrator. Evidence has shown that when nursing home disputes are settled by arbitration, the outcome tends to be more positive for the guilty party and not the injured victim.

Special Interest Groups Fight Ban
Last December, a nursing home special interest group filed an injunction in the Mississippi Supreme Court to stop CMS’ arbitration ban from taking effect. A judge supported the injunction and since then, CMS and the Trump administration were said to be working on a appeal. Unfortunately, instead of filing paperwork to continue their appeal, U.S. Department of Justice attorneys decided to abandon the fight. While there is a small chance that the appeal could be challenged again at the district level, CMS hasn’t answered what future plans for the ban are and arbitration clauses in nursing homes seem to be here to stay.

Administration Trying to Reverse Rule Blocking Nursing Home Arbitration Clauses

Late in the Obama Administration the Center for Medicare and Medicaid Services promulgated a regulation that provides that nursing homes will no longer receive federal funding if they use arbitration clauses in their contracts (arbitration clauses deny your access to jury trials).  There is now unwelcome news in several press reports that the Trump Administration is looking to gut that rule.

 

The Trump Administration is About to Put Nursing Home Profits Ahead of Nursing Home Patients

Some of the most heart-wrenching stories of abuse, mistreatment and neglect you’re likely to hear involve nursing homes. As America’s baby boomers age, and nursing home populations continue to grow, big corporations have, not surprisingly, started to take note. In fact, the vast majority of nursing homes in the United States – 70%, according to the Centers for Disease Control and Prevention – are run by for-profit corporations, and an increasing number of homes are being snapped up by Wall Street investment firms.

And that, in turn, can often mean that high quality care takes a backseat to high profits.

Increasingly, these giant corporations are using forced arbitration clauses — contract terms that say that people cannot sue them, no matter what laws they break, and instead people harmed by illegal acts can only bring cases before private arbitrators who are generally beholden to the corporations. These clauses make it far harder for the victims of mistreatment to hold a facility accountable where there’s abuse or serious negligence, and they minimize the incentive to provide the highest quality of care.  The secretive arbitration system also effectively lets homes sweep the facts about problems under the rug, so that the public and regulators never learn about widespread or egregious abuses.

That’s why, in 2016, the Centers for Medicare and Medicaid Services said nursing homes should no longer receive federal funding if they use arbitration clauses in their contracts. It was a commonsense proposal that would ensure families can hold nursing homes accountable for abuse and neglect. The government essentially said – and rightly so – that protecting desperately vulnerable people is more important than squeezing out an extra percentage of profit for hedge fund owners.

But that was 2016. Now, the Trump Administration appears to be gearing up to kill the proposal.

Senator Al Franken (D-MN), a fierce opponent of arbitration who has fought corporate lobbyists to protect Americans’ right to their day in court, said on Tuesday that “the Trump Administration is planning to lift the ban on nursing home arbitration clauses.”

So the White House, it appears, is ready to deliver another gift to hedge funds and banks – the corporate entities that increasingly control the nursing home industry – at the expense of the sick and elderly and their families.

It’s no wonder why corporate lobbyists working for the nursing home industry have made killing the CMS proposal a top priority: unlike the public court system (where trials are open to the public, press and regulators), nursing homes benefit enormously from the secretive system of arbitration, where the facts about abuses can be (and often are) buried. “Confidentiality” provisions – which really translate into gag orders – and non-transparent, non-public handling make it easier for systemic problems to stay hidden, and to continue.

If nursing homes are permitted to continue opting out of the civil justice system, we can expect to see lower levels of care, and higher numbers of preventable injuries and deaths. If they succeed in keeping families out of court, the potential savings to their bottom line are enormous when you consider that abuse is very widespread (according to the government’s own study).  Public Justice, our national public interest law firm and advocacy organization, set forth an extensive factual and legal case in support of the CMS proposal, where a great deal more background is available.

Consider just a handful of the plaintiffs who were able to successfully challenge nursing homes in court:

  • A 90-year-old woman allowed to languish with a festering pressure sore, acute appendicitis, and a urinary tract infection so severe it has entered her blood.
  • A diabetic patient injected with the incorrect dose of insulin, sending them into hypoglycemic shock and causing brain damage.
  • An 81-year-old man who was viciously beaten by a roommate who’d been involved in 30 assaults prior to moving in with the victim.
  • An 87-year-old woman whose calls for help were ignored after she fell and broke her hip.

Had any of those patients been subject to an arbitration clause – as no doubt many future cases would be if the Administration folds to pressure from for-profit homes – they likely would have never had a chance to have their case heard by a jury.

Nursing homes have complete control over some of the most vulnerable and fragile people in the entire country: people who are gravely ill, who are often cognitively impaired in ways that make it hard for them to protect themselves, are completely at the mercy of these institutions.

Now, rather than working to give those patients some small measure of protection and security, the Trump Administration is poised to give them the shaft. It’s unconscionable back-pedaling that would leave millions with little recourse when they, or their loved ones, are mistreated or abused.

Photo by Chad Gierlich, via Flickr

Jury trial right in danger

HOW TO PROTECT YOURSELF FROM GOVERNMENT ASSAULT ON LAWSUITS AND DAMAGES

Responsibility and accountability – even for the powerful – are rooted into the core of our legal system. This country’s founders knew that a democracy needs a court system that empowers people to protect themselves, by holding the powerful to account. That’s why the Constitution guarantees each person the right to a trial by jury.  Thomas Jefferson said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

The founders feared unaccountable power in the form of the King of England against his “subjects.” 21st Century America may not have a king, but it does have billion dollar corporations touching every part of every person’s life. These corporations now seek the kind of unaccountable power our founders sought to protect against, and they’re seeking that power by destroying your constitutional right to a trial by jury.

Politicians who are in the pockets of large corporations and insurance companies have devised a plan specifically aimed at destroying our right to hold those in power accountable for their misdeeds. Their plain is to enact laws that will all but destroy your right to use the judicial system to protect yourself. They have introduced bills which, if passed, will enact arbitrary changes to courts all across the country, including:

  • Limiting compensation for injuries caused by medical professionals, including doctors, hospitals, nursing homes, and medical device manufacturers, to $250,000.00, regardless of how much that injury devastated your life or the extent of malfeasance by the medical professional or company.
  • Eliminating class-action law suits, which would essentially destroy the ability to bring the kinds of cases that keep us safe
  • Eliminate individual state laws regarding lawsuits and forcing all cases to Federal Court
  • Allowing insurance companies to make “payments” rather than paying full compensation.

We must tell our government to put people first and stop trampling on our rights. PETERSON | Law has been protecting Massachusetts residents by demanding that everyone is treated fairly, regardless of gender, race, or economic status. Please join us in demanding that Congress do the same. We must ban together and contact our representatives to demand they say NO to these outrageous attacks on our rights. Go to each link below and tell them NO!

Your right to justice is at risk

This is from my American Association for Justice about legislation in Congress that seeks to prevent injured individuals from getting properly compensated, in order to purportedly help the doctors and the corporations.

However, the data from states like Texas, that limited the rights of individuals to be compensated more than fifteen years ago in hopes of saving costs, is clear that taking away an individuals’ right to get proper compensation for their injuries does not save much, if any, money on doctor’s malpractice or others’ insurance policies.

Insurance is the mechanism by which our society has opted to spread the cost of individual’s injuries over the society in general.  Taking away people’s right to sue and be compensated merely makes that injured person bear the cost effects of the injury done by some third party, without any substantial savings to the Defendant. –

AAJ-20170306-protect the right

This week, Congress will vote on legislation that will rig the system against individuals like you and tip the scales of justice in favor of powerful corporate defendants. We need to send a strong message to Congress that these anti-civil justice bills must fail.  Take Action

If you agree that it is unacceptable for Congress to eliminate your rights to hold corporations accountable, we urge you to contact your elected officials today. Tell your representatives to stand up for you and your family and vote NO on offensive anti-civil justice legislation.

Please take action today! Your elected officials need to hear from you that you want to preserve your rights to access the civil justice system.  Take Action

Your right to sue if you are injured is under attack

Congress Moves To Punish Anyone Using The ACA And Medicare

House Republicans are hoping to dismantle the Affordable Care Act by punishing those who benefit from it.

02/26/2017 05:44 pm ET | Updated 1 day ago

Anadolu Agency via Getty Images

Those who think Congress is weakening its anti-Obamacare, anti-Medicare resolve aren’t paying attention. Instead of beginning with repeal and replace bills, however, Congress has shifted focus to punishing anyone who benefits from these laws. And it’s happening right now.

On February 28, 2017, the U.S. House Judiciary Committee will markup and vote on a rushed piece of legislation, H.R. 1215, covering anyone who receives health care through a “federal program, subsidy, or tax benefit.” At a minimum, that means the Affordable Care Act, veteran and servicemember health plans, Medicare and Medicaid (i.e., the elderly, poor and disabled). Beyond this, the full scope is unclear because the bill has not been examined in a single legislative hearing.

According to H.R. 1215, punishment would begin if you (or your child or loved one) were harmed by an unsafe hospital or nursing home, in some cases injured by an unsafe drug or medical device, or even sexually abused by a doctor. If you tried to seek compensation or accountability in court, you would be forced into an inferior and cruel system of justice created just for you by lobbyists and career politicians in Washington DC.

This bill, H.R. 1215, the so-called “Protecting Access to Care Act of 2017” (more like the Protecting Access to Unsafe Care Act of 2017) is the brainchild of congressional Republicans who say they want government out of health care. Ironically, this bill is nothing if not federal mandates, including eliminating civil justice rights guaranteed by state governments. These mandates include taking power away from local juries to decide individual cases, and consolidating that power in the hands of DC politicians.

Among H.R. 1215’s many harsh provisions is a federal mandate on the value of a life. This appears in the form of an across-the-board $250,000 “cap” on compensation for “non-economic” injuries (like paralysis, trauma, reproductive harm), which would be mandated in states even where such caps are unconstitutional. That same cap would apply whether a parent lost a child, a senior citizen were harmed in a nursing home, or a family breadwinner were permanently disabled due to reckless medical care.

Other provisions include:

· A federally-mandated statute of limitations ― the time limit for someone to file a meritorious lawsuit ― which is more restrictive than a majority of state laws.

· Federal repeal of state collateral source rules, meaning a wrongdoer can reduce their obligation to compensate a patient by the amount of disability, workers compensation or other insurance received, to which a patient has a right.

· Federal repeal of state joint and several liability laws, meaning that the injured patient ― not other fully-responsible wrongdoers ― would have to cover the cost of an injury if one of the fully-responsible wrongdoers cannot pay.

· A federally-mandated prohibition against a severely-injured patient receiving a full jury award in a lump sum, leaving the patient undercompensated while the insurance company gets to sit on the money and pocket the interest.

· Federal interference with an individual’s right to contract with their own attorney on fees (while the insurance company or hospital that committed malpractice has no such restriction).

· A federally-mandated ban on including a hospital, nursing home or health care provider in a case against a drug company over an unsafe drug, even if the provider negligently prescribed or administered the drug and is jointly responsible for causing injury or death.

Medical errors are the third-leading cause of death in America, behind heart disease and cancer. Enact this bill, and watch “medical errors” rise to number one or two.

If you need any evidence, take a look at what’s happening in Texas, which has some (but not all) of these laws already. Texas attracts neurosurgeons like Christopher Duntsch, who was just sentenced by a jury to spend the rest of his life in prison:

For weeks, jurors heard the accounts of patients who had been maimed or paralyzed in horrifically bungled surgeries. Kellie Martin and Floella Brown died… “So why didn’t he stop?” … “Because of greed. Because he owed people a lot of money. He wanted to live the high life and a neurosurgeon makes big bucks. Why didn’t he stop? Because he had no conscience. He doesn’t care what he has left in his wake.”

But there’s another reason why he didn’t stop: a Texas law that severely caps damages, just like H.R. 1215 would do. As attorney Chris Hamilton explained, without this law, “Duntsch would not have been allowed to keep operating on patients. It is almost certain there would have been a significant liability lawsuit against one of the hospitals for an early patient… I cannot imagine a circumstance where the hospitals would not have kicked out a doctor like this much sooner.’”

Yet this isn’t the only case of a butcher brain surgeon in Texas. A few years ago, there was another guy, Dr. Stefan Konasiewicz. After being disciplined in Minnesota, Konasiewicz made a bee-line for Texas where he continued to harm patients as he operated on their brains.

But we don’t even need horrendous anecdotes like this to prove the point. Researchers studying patient safety in states with “caps” (like Texas) found “consistent evidence that patient safety generally falls” after caps are enacted. That’s because medical malpractice liability gives providers an incentive to be careful.

H.R. 1215 is the sixth anti-civil justice bill in less than two months coming out of the U.S. House Judiciary Committee, not a single one of which has had a hearing. As lobbyists and politicians scheme to strip Americans of their legal rights, they are hoping no one notices. If they succeed on any of these bills, it will be open season on American families and small businesses that are harmed by super-rich industries or reckless health care.

As I’ve said before, “woke America, these ‘under the radar”’ issues need your attention. Time to add them to the long list of things that need ‘resisting.’”